If Justice Swaminathan Was Affected By External Factors, He Should Have Recused: Third Judge On Split Verdict In Savukku Shankar Detention Case

The Madras High Court on Thursday ruled that the split verdict passed concerning the detention of YouTuber Savukku Shankar was without following the principles of natural justice granting fair opportunity. The court thus directed the matter to be heard afresh by the bench dealing with habeas corpus pleas. 

The order was made by Justice G Jayachandran, the third judge appointed by the Acting Chief Justice following the split verdict. Justice Jayachandran noted that while the court was not bound by a hard and fast rule of granting 4 weeks to file counter, especially in cases dealing with detention orders, the authority needed to be given a reasonable opportunity to justify the detention order. He noted that the impugned order suffered from a violation of natural justice as the state was not allowed to file a counter.

“The court is of the view that the order now before this court is for reference, suffers violation of the natural justice principle of affording an opportunity of filing counter when it was sought for,” the court said.

On May 2024, a vacation bench of the Madras High Court delivered a split verdict in the Habeas corpus plea moved by A Kamala, Shankar's mother, challenging his detention under the TN Preventive Detention Act. While Justice GR Swaminathan wanted to set aside the detention order passed against Shankar, Justice PB Balaji wanted to give more time for the police to file their counter.

Justice Swaminathan also added that he wanted to take up the habeas corpus plea and pass orders on the same day because some high-ranking men had personally met him requesting him not to take up the HCP for final disposal. Saying this prompted him to take up the matter, he said that if he didn't take up the matter, he would be failing his constitutional duty.

Noting that the order could not be construed as a complete judgment, Justice Jayachandran said that there were a lot of external factors in the case. He added that the impugned order did not even contain the point of view of the second judge, who thought it fit to give time to the state for filing a counter. The judge added that if Justice Swaminathan was affected by external factors, he should have recused himself from hearing the case, thereby not allowing a negative bias. 

Siding with the opinion of Justice PB Balaji, Justice Jayachandran noted that though the court had to interfere whenever there was curtailment of personal liberty, the authority that had passed the impugned order needed to be given a reasonable opportunity to put forward their case. The judge orally remarked that it was important for the courts to make sure that justice is not only done but seems to be done.

Noting that it was appropriate for the matter to be heard before a division bench, the court asked the counsels if they were willing to argue the case on priority before the appropriate bench to which the counsels replied in the affirmative. Noting the same, the court directed the matter to be placed before the bench dealing with habeas corpus pleas.

Seeing how there was a docket explosion with cases being filed against detention orders and pendency of such cases, the court also suggested that a mechanism be formulated to make sure that habeas corpus pleas against detention orders are disposed of within two months so that liberty of individuals are not curtailed without due process of law.

Citation: 2024 LiveLaw (Mad) 234

Case Title: A Kamala v State

Case No: HCP 1163 of 2024